NGUYEN THI LY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2549/2019

[2025] HKCFI 2697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2549 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Nguyen Thi Ly (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 10 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 7 February 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Vietnamese.  She was born on 9 February 1985 in Bac Giang, Vietnam.  She received education up to senior high school and had about 10 years of work experience.

3.  The Applicant claimed that her creditors in Vietnam (“Creditors”) would harm or kill her because of outstanding debts.  According to the Applicant, she opened a shop selling cosmetic products (“Shop”) in March 2017.  She borrowed Vietnamese Dong (“VND”) 500 million from a creditor and VND 400 million from another creditor (together “Loans”).  Both Creditors charged VND 10 million monthly interest and they did not specify the deadline for repaying the principals.

4.  A fire broke out in the Shop and the Applicant lost everything in it. Since mid-May 2017, the Creditors came to the Applicant’s home to demand repayment from time to time.

5.  On a day in the end of May 2017, the Applicant was raped by two of the Creditors’ men in front of her daughter.  The Applicant suffered bruises and swellings all over her body from the attack.  The men threatened to make her their sex slave if she did not pay back the outstanding Loans.  The men told the Applicant that they had bribed the police and any complaint by her to the police would be futile.  They also threatened to harm her family if she made a report to the police. 

6.  The Applicant was raped by the Creditors’ men about five more times in around June 2017.  She became pregnant and had a miscarriage towards the end of June 2017.  With the help of an unknown Chinese man, she fled to Hong Kong on 30 June 2017 to seek protection.

7.  After arriving in Hong Kong, the Applicant learnt from her mother-in-law in December 2017 that the Creditors were still looking for her and they threw stones at her house in Vietnam.  They also threatened to kidnap her daughter if she did not pay back the Loans.

8.  The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”):

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 ("Ordinance" and “torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

9.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

10.  On 2 September 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party, although the heading of the Form 86 and Supporting Affirmation identified both the Board and the Director as putative respondents.

Legal principles applicable to judicial review

11.  In a judicial review, the court does not step into the shoes of the decision makers.

12.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

13.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

14.  In the Form 86, the Applicant  did not put forward any ground for her intended judicial review.

15.  In the Supporting Affirmation, the Applicant exhibited the Board’s Decision but did not put forward any ground for her intended judicial review.

16.  The Applicant did not attend the hearing scheduled for 21 May 2025. Notices of hearing date 24 April 2025 sent to the Applicant’s address stated in the Form 86 as well as to her last reported address as advised by the Director’s letter dated 6 May 2025 (“Letter”) were subsequently returned to the court undelivered and marked “unclaimed”.  In the Letter, the Director also advised that the Applicant had absconded since 11 June 2024 and was wanted by court in another matter.  As such, I decided to proceed with this application of the Applicant for leave for judicial review of the Board’s Decision according to the papers placed before the court. 

17.  In §4 of the Board’s Decision, the Board recorded that: “During the hearing [before the Board] the [Applicant] added a new claim, that she fears harm from the Vietnamese government because of her membership of a minority group, being the Tay indigenous group.”

18.  In §§40-80 of the Board’s Decision, the Board set out the evidence of the Applicant in some details and assessed her claims as largely credible and consistent.

19.  The Board accepted the Applicant’s claims of being assaulted and raped by the Creditors’ men due to the outstanding Loans.  The Board also accepted that she had previously experienced discrimination on the basis of her ethnic group.  However, in §§91-94 of the Board’s Decision, the Board expressed reservations as to some of the alleged threats issued by the Creditors’ men towards her family in Vietnam.

20.  The Board found that the Applicant could avoid the perceived harm from the Creditors and their men by relocating to her home village or other parts of Vietnam. (§§95 and 98 of the Board’s Decision)

21.  In §133 of the Board’s Decision, the Board noted that the Applicant chose not to report the relevant incidents to the Vietnamese police, albeit for the understandable reason of not wanting to identify herself as a victim of sexual violence.  The Board found that if she had sought help from the criminal justice system, reasonable protection would have been available to her.

22.  The Board also considered the new claim by the Applicant that she faced discrimination and persecution because she belonged to the ethnic minority group (Tay) (see §44 of the Board’s Decision).  The Board carefully considered the country of origin information (COI) and found that discrimination did occur on the basis of ethnicity and gender in Vietnam, but the COI also showed that the Vietnamese government had enacted laws and policies to address these with varying success.  (§107 of the Board’s Decision).

23.  In §120 of the Board’s Decision, the Board noted that there was no evidence that the Applicant or her daughter had ever been denied important government services on account of their ethnicities.  It also noted that the Vietnamese government was committed to address the issue of discrimination and a significant portion of the Vietnamese population considered discrimination based on ethnicities as backward and uneducated. 

24.  The Board concluded that overall the Vietnamese government did not officially tolerate discrimination and the laws and policies put in place were an effort to control this behavior.  The Board therefore found that the Applicant had not suffered persecution for any reasons referred to in the Refugees Convention resulting in serious harm to the Applicant. (§§121-122 of the Board’s Decision)  

25.  The Board noted that the Creditors’ men used violence on the Applicant because of monetary disputes and her ethnicity had nothing to do with their actions.  It also noted that while discrimination by the Vietnamese communities existed for the Applicant, it did not rise to the level that she had a well-founded fear of persecution (§144 of the Board’s Decision) and the Vietnamese government did not condone discrimination (§134 of the Board’s Decision).  The Board therefore did not accept that the Applicant suffered any serious harm for a reason identified by the Refugees Convention or that she had been persecuted within the meaning of the Refugees Convention.

26.  No proper ground for the Applicant’s intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way the Board’s Decision was unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

27.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

28.  In §§124-145 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. 

29.  The Board found that the Applicant had not established that she has been a victim of the state or any public official acting in an official capacity for the purposes of section 37U(1) of the Ordinance or that she faced a risk of being torture either physically or mentally or discriminated against for any reason under this section.  The Board did not consider that there were substantial grounds for believing the Applicant to be in danger of being subjected to torture if returned to Vietnam.

30.  The Board accepted that the Applicant had been seriously harmed in the past by the Creditors which did attain the minimum severity.  However, the Board found that the Applicant could relocate in order to avoid the harm she feared and that in her circumstances this option was a real and viable one for her.  The Board further found that the criminal justice system was available to the Applicant if she should wish to pursue this.

31.  In relation to her claim of being discriminated against the basis of her ethnicity, the Board concluded that the ill-treatment the Applicant would face if she were to return to Vietnam did not reach the minimum level of severity and she did not face a genuine and substantial risk of being subjected to the BOR 3 risk.

32.  The Board further found that there was not a real risk that the Applicant would arbitrary be deprived of life, have the death penalty imposed on her or otherwise be deprived of her rights under BOR 2.  Returning the Applicant to Vietnam would not expose her to a real risk of a violation of her right to life so as to constitute a breach of BOR 2.

33.  The Board found that the Applicant’s feared harm from the Creditor was not for one of the reasons contained in the Refugees Convention.  It was “private” harm.  The Board found that the Applicant did not have a well-founded fear of persecution for a Refugees Convention reason for such feared harm.

34.  In relation to the issue of discrimination being viewed as persecution on the basis of her ethnicity and gender, the Board found that the discrimination faced by the Applicant did not rise to the level that she had a well-founded fear of persecution.

35.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM.  These were findings of fact exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

36.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1